Farm Bureau Mut. Auto. Ins. Co. v. Garlitz
| Decision Date | 27 May 1942 |
| Docket Number | 38. |
| Citation | 26 A.2d 388,180 Md. 615 |
| Parties | FARM BUREAU MUT. AUTOMOBILE INS. CO. v. GARLITZ. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Allegany County; William A. Huster Judge.
Proceeding by Nettie Garlitz, administratrix of the estate of Henry Broadwater, deceased, against Farm Bureau Mutual Automobile Insurance Company, to recover under an automobile liability policy issued to a judgment debtor. From an adverse judgment defendant appeals.
Judgment reversed without a new trial.
Elmer B. Gower, of Cumberland (William A. Gunter, of Cumberland, on the brief), for appellant.
William L. Wilson, Jr., of Cumberland (Edward J. Ryan, of Comberland on the brief), for appellee.
Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.
The insurer in an automobile liability policy appeals from a judgment rendered in favor of a judgment creditor of the insured, and the single question is whether a change of statement or testimony by the insured on the original trial constituted a lack of the co-operation by him which was made by the policy a condition to liability on it.
The insured was Randall Beachey, owner of a truck, and he became judgment debtor to the administratrix of Broadwater, who was also mother-in-law of the insured, in a suit for damages in the accidental killing of Broadwater by the truck. On Saturday, February 3, 1940, Beachey brought a truck load of coal to his home near Cumberland, and left it parked there ten or twelve feet from the house, until Monday morning. On that morning Broadwater, who was Mrs. Beachey's uncle, volunteered to unload the truck, and Beachey started the motor, leaving the emergency brake on, and Broadwater preparing to put water in the radiator. Beachey left for his work a few minutes afterwards. In some manner unknown Broadwater was subsequently crushed between the truck and the house. The ground of recovery by his administratrix in the original suit was danger from a defective brake. 'It isn't very steep', Beachey testified, 'but its a little grade.'
An investigator for the insurer, having been notified of the accident, came three days later and took Beachey's statement of the occurrence in writing. He wrote it out, and Beachey signed it below a clause reading: 'I have read the statement of two pages, knew its contents, and it is true to the best of my knowledge.' And in it he said: 'I have never had any trouble with the emergency brake, and it works all right now.' Again, nine days later, Beachey gave a supplemental statement, signed after substantially the same assertion that he had read it and that it was true, and in that said: . Both statements were read to him before the trial, and no correction was suggested.
Called as a witness for the plaintiff in that original suit against him, Beachey testified: 'You take with that load on, no emergency brake will hold.' The brake had previously flown loose with him, he said. Again, he said, the truck then drifted backwards toward him.
He conceded that the investigator put down in the written statements what he, Beachey, had said, and his explanations of the contradiction with his testimony differed somewhat, and finally came to, 'I don't know.' He did not remember the statement made at the first interview with the investigator. He did not at that time remember the happening two weeks previously; the fact came to him later, when he heard there was to be a trial.
He did not think he 'was going to get into this mix-up.' Then asked specifically why he had made the earlier statements that the truck had never drifted away from him before,...
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